Monday marks a critical day for President Obama’s executive actions on immigration, as his legal team makes arguments to the Supreme Court to allow them to go forward.
In oral arguments, the Obama administration will ask the justices to lift a lower court injunction that blocked the implementation of the programs, which would allow millions of undocumented immigrants to live and work in the U.S. without fear of deportation.
A group of 26 states, led by Texas, will argue the injunction should be kept in place because Obama overstepped his authority and the programs would pose high costs on their governments. The court is expected to hand down a ruling in June. But Obama and his allies are facing the possibility of a deadlock that would hand a victory to Texas and the states.
If the short-handed court splits 4-4, the lower court’s ruling would be left in place, which would virtually guarantee the programs will not go into place before Obama leaves office. “The 500-pound gorilla is the empty chair of Justice [Antonin] Scalia,” said Josh Blackman, a constitutional law professor at the South Texas College of Law, who helped file a legal brief backing the lawsuit against Obama’s programs. “It has a significant impact on the outcome of the case. Because we’re down to only eight justices, there is a distinct possibility of a tie.”
Supporters of the program argue the eight-member Supreme Court might not have the final say on the programs. If the justices cannot reach a majority decision, they say states, cities and activist groups could launch a new round of legal challenges in other courts to try to fight the injunction, imposed by U.S. District Judge Andrew Hanen of Texas and upheld by the Fifth Circuit Court of Appeals, known as the most conservative appeals court in the country.
“What happens then is what we call judicial chaos,” said David Leopold, former president of the American Immigration Lawyers Association. “It would open the door to a floodgate of cases trying to challenge the injunction.” The states could argue that they would be deprived of economic benefits of the programs.
A coalition of 118 cities and counties, including New York City, filed a legal brief last month arguing they could miss out on around $800 million in economic benefits to state and local governments if millions if large numbers of immigrants remain subject to deportation.
Other legal experts call that scenario farfetched, saying cities and states lack legal standing to bring such a suit based on potential lost benefits. “It has no legal merit,” said Blackman. Immigrant rights groups are hopeful it won’t come to that and are confident of a victory at the Supreme Court. They see Chief Justice John Roberts and Justice Anthony Kennedy as likely votes in favor of the Obama administration. They are confident the justices, and Roberts in particular, will find that the states do not have the right to sue the federal government to block the immigration actions.
If the justices agree the states do not have standing, the case could be thrown out and the administration could start putting the programs in place. Texas and its counterparts argue they would suffer high costs from issuing driver’s licenses and providing other benefits to undocumented immigrants if that occurs.
“If any budgetary impact, no matter how speculative, on a state provides the opportunity to go to court and challenge any federal policy, then we would see the courts flooded with such cases,” Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Education Fund (MALDEF), told reporters this week.